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Will the threat of jail improve safety?

Jan 13, 2015

By Norm Keith

In recent years, enforcement of occupational health and safety laws has taken on more of a criminal appearance. OHS regulators have increased pressure to punish employers and their representatives when accidents occur in the workplace. More organizations, officers, directors, managers and supervisors are being charged with criminal or quasi-criminal offences.

From a policy perspective, is the criminalization of OHS laws, and increased risk of jail for individuals charged, really improving occupational health and safety compliance? Or, to put it another way, will jail or the threat of jail really help reduce the number of workplace accidents, injuries and fatalities in Canadian workplaces?

In 2012 there were 244,365 workplace accidents that resulted in lost-time claims and 977 work-related fatalities across Canada, according to the Association of Workers’ Compensation Boards of Canada. These statistics have remained relatively static over the past five years.

Do these workplace injury and fatality statistics reveal the need for even greater criminal enforcement of OHS laws? Do we need more individuals going to jail under OHS laws? Or do the statistics indicate a lack of effectiveness of the criminalization of OHS law enforcement?

Jail is often determined to be the appropriate penalty for individuals who commit crimes under the Criminal Code. Sentencing provisions of the code have been extensively reviewed and refined by a number of successive federal governments.

The following are key principles that guide when and why jail should be used:

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to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

The code has another guiding principle for when courts incarcerate individuals who have committed crimes. It states “A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender.” Keeping the public safe from dangerous individuals is a strong reason to put them away and keep them in jail.

Do the same principles of incarcerating individuals convicted of crimes equally apply to OHS laws in Canada? This is the heart of the question being addressed by regulators, politicians and workplace stakeholders.

Some OHS regulators argue that harsher penalties and more individuals going to jail is necessary. It is also suggested that jailing individuals who are responsible for workplace accidental injuries and death will be effective at reducing workplace accidents. However, I do not believe this will be the case.

Firstly, OHS statutes are strict liability, quasi-criminal, regulatory offences; the procedure in prosecuting such an offence is essentially criminal but the presumptive penalties associated with a conviction are quite different. Courts have consistently held that the presumptive penalty of a conviction of an OHS offence for an individual is a fine, not jail time. Jail is not presumptively an appropriate penalty for a guilty individual, be they a supervisor, manager, officer or director of a corporation.

Secondly, although criminal charges presumptively are a moral affront to society and may result in an individual getting a jail term, OHS statutes do not have that same social stigma. To pursue a jail term, OHS criminal negligence charges are necessary. However, there have been very few prosecutions under the Bill C-45 amendments to the code — only 10 cases in the first 10 years.

Lastly, there is a surprising lack of empirical evidence to suggest jail terms will result in increased attention to health and safety accident prevention and reduction in workplace injuries and fatalities. There is empirical evidence of the effectiveness of monetary incentives — demonstrated by workers’ compensation experience rating systems — and training prevention programs on reducing workplace injuries. However, there is no proof the criminalization of OHS laws — and the imposition of jail terms on directors, officers, managers and supervisors — materially affects behaviour such that accidents, injuries and death in the workplace are reduced.

The degree to which policy-makers, politicians and organized labour have called for the criminalization of health and safety law offences and jail for offenders is more of a knee-jerk reaction than good public policy.

Jailing OHS offenders may also have serious unintended consequences. For starters, prosecution of individuals enhances the rights of individuals charged. Our legal system provides greater procedural protections to criminal defendants. Criminal defences to OHS criminal charges include various rights under the Charter of Rights and Freedoms.

There is also a well-known practice that the Ministry of Labour inspectors in Ontario purport to use “inspection” powers during critical injury and fatality investigations. This practice will be challenged if individuals are more likely to be put in jail for an OHS offence.

The more aggressive and serious the penalties for OHS offences, the more likely the rights and defences of an accused will be pursued vigorously. This takes time, money, court administrative resources and “opportunity costs” to the judicial system — all paid by Canadian taxpayers.

The question then becomes if imposing jail terms on individuals to attempt to reduce workplace accidents is fundamentally flawed, why do governments persist in talking about and threatening a greater number of prosecutions, and even jail terms, for individuals?

Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in employment, health and safety, environmental, workers’ compensation and white-collar crime litigation. He can be reached at (416) 868-7824 or nkeith@fasken.com.

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.

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5 Comments

Will the threat of jail improve safety?

Saturday, January 24, 2015 7:18:00 AM by Ian Wood

Bob - absolutely you are right on. I couldn't agree more. A few rotten apples spolis the bunch so to speak; however, when there is a legitimate and provable case that should not be painted with the same brush, something needs to be done. I have been a witness to both sides of this coin and, when an employer is a persistent abuser where many people have suffered and are suffering, there needs to be an avenue to address this. Don't you think? Psychological abuse takes years to recover from...

Will the threat of jail improve safety?

Friday, January 23, 2015 1:26:00 AM by Ian Wood

Very interesting article - thankyou for raising the issue of whether or not an action is to be considered criminal.Personally, I believe that the "employer" should not be allowed to hide behind WCB/OHS legistlation when their actions and behaviour amount to criminal activity. The employer (and any other worker for that matter) should be held responsible for their action. Let me explain...When an "employer" is responsible for bullying, harassment, emotional trauma and distress causing physical harm and blatant malicious defamation of character etc., then the affected victim of such abuse should have the right to sue. This should be made a criminal offence - criminal offence includes such things as punching someone on the nose for example - assault and battery - yet the effects of psychological trauma from the causes listed above are severe and long lasting - affecting not just the victim but their families as well. Psychological abuse is on the rise in all our workplaces and employers feel they have the right to abuse staff and hide behind the fact that they cannot be sued. THIS HAS TO STOP!So in answer to the question - my two cents worth - make psychological abuse and bullying a criminal offence and put the offenders in jail.Any feedback? Email me at iancwood33@gmail.com. I would love to hear your stories with a view to making changes.

Will the threat of jail improve safety?

Thursday, January 22, 2015 10:15:00 PM by Bob Fleming

There are two sides to this discussion that need to be considered. This one is the most obvious to look at: was the employer negligent? If they did not have employee safety as a priority, they should be punished. The other seems to be less obvious in the eyes of the law and the process: did the worker do everything reasonable to protect themselves? Because the employer is the one who is punished, some workers don't think there's any point in following best practices; and when they are injured, they paint themselves as the victim. There are people out there looking for a minor injury that will set them up for the rest of their life, so they don't have to work any more. When this happens, the company gets painted as the villain. I used to know an investigator for worker compensation claims, and he would catch people in all kinds of scams, trying to defraud the worker insurance system. Yes, employers should be held accountable for negligence, but so should workers.

Will the threat of jail improve safety?

Thursday, January 22, 2015 8:28:00 PM by Ian Wood

Follow on...Psychological abuse is on the rise in all our workplaces and employers feel they have the right to abuse staff and hide behind the fact that they cannot be sued. THIS HAS TO STOP!So in answer to the question - my 2cents worth is absolutely - make psychological abuse and bullying a criminal offence and put the offenders in jail.Any feedback? - email me at iancwood33@gmail.com - i would love to hear your stories with a view to making changes.

Will the threat of jail improve safety?

Wednesday, January 21, 2015 9:40:00 PM by Edward Stern

After working for the U.S. Occupational Safety and Health Administration for 27 years (before I retired), it appears to me that a some deaths at work are not accidents at all. Instead, they result from criminal negligence, where the death was the result of an act or a failure to act that showed wanton or reckless disregard for the lives of others. An act is generally considered negligent if a reasonable person would have foreseen that the action would endanger a life.Sad to say, some employers are willing to risk the lives of workers by knowingly putting them into situations of grave danger.I suggest that the threat of jail does deter people from some criminal acts. Negligent homicides are crimes and should be prosecuted. It should cut the number of deaths in trenches and grain silos. Why not give it a try?